they have a built-in, fool-proof social security system of their own-they care for their aged, their sick, their unemployed. They neither need nor would be permitted to accept any form of social security payments from outside their self-sufficient community. Not only is it considered a sin to accept, it is also considered a sin to pay, for to pay is to deny their faith. It is this crucial distinction which weakens an otherwise strong argument opposing Lee's claims.
The government concedes both the worthiness and the sincerity of the Amish beliefs, yet they counter with the inherent power of the government to tax. While recognizing the precedential weight of 1402(g) as a rationale for extending the exemption to include all forms of social security taxes, they argue the difference in the function of the tax. The 1402(g) exemption falls under the "income tax" provision of the Social Security tax system. The taxes at issue here-the employer's share of FICA, FUTA, and deduction of his employees' FICA taxes for which he is personally liable-are termed "excise taxes," a flat fee imposed upon an employer for the privilege of doing business, totally unrelated to the purpose served by the tax. These taxes are a contribution to a "general welfare" fund to provide for all who become dependent on society. As benefits under the SSA are not automatic, accruing only upon the filing of an application for receipt of benefits, plaintiff Lee need only refuse the benefits to avoid violating the precepts of his faith. This distinction between a self-employment payment as "income tax" and deduction and payment of an employee's tax as an "excise tax" is a distinction without a difference and raising it does little credit to the government agencies concerned. Calling a rose a violet hardly changes its odor. The distinction overlooks the key contention: Payment of the tax is the sin that burdens the free exercise of the Amishman's religion.
The free exercise of one's religion is a fundamental, natural, absolute right, firmly entrenched in the foundation and the history of our legal system. Courts have given the First Amendment a broad interpretation in light of its history and the evils it was designed to prevent. When this right has come into conflict with an equally valued and respected governmental interest, the Court will apply a balancing test to determine which must yield to the other. A pattern has emerged from these conflicts which has set guidelines for determining the predominate interest. Courts have determined that while religious beliefs may be inviolate, religious conduct is not; therefore conduct jeopardizing public safety, peace, or order will fall to Governmental interest. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (polygamy not protected by free exercise clause), Prince v. Mass., 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (child labor law upheld against 9 year old child distributing religious pamphlets.) Failure to pay taxes is alleged to jeopardize the public welfare.
The government contends there is no constitutional right to be immune from taxes. The power to tax is a legitimate exercise of the government that overrides individual preference. The government draws an analogy to the challenges to the Selective Service laws as an interference with the free exercise of religion. The analogy is well taken: The power to conscript for war is also a legitimate government exercise. As in the present case, a legislative exemption was extended to those who, because of religious principles, opposed the concept of war. The cases cited by the government were attempts to expand the exemption to cover conscientious objectors who opposed particular wars (specifically, the Viet Nam war). Gillette v. U. S., 401 U.S. 437, 91 S. Ct. 828, 28 L. Ed. 2d 168 (1971), Loewing v. U. S., 392 F.2d 218 (10th Cir. 1968). The expansion was denied because of the administrative burden of distinguishing valid claims from invalid ones and the political overtones inherent in such decisions. The present case presents no such problem. The group seeking exemption is clearly defined, long-recognized, and unquestionably sincere. Nor is there a danger of an open-ended category capable of uncontrolled expansion. The Old Order Amish, and groups like them, are small groups whose labor generates a small amount of wages and taxes. The loss of revenue from granting the exemption would be negligible. Clearly the granting of the exemption does not interfere with the establishment or preservation of the general welfare of the public. The history and intent of the 1402(g) exemption further underscores this conclusion:
We believe that an exemption from Social Security taxes ... would be justifiable only in cases where it is amply clear that an individual cannot accept the benefits of insurance, including social security benefits, without renouncing the basic tenet of his religion ... (p. 101).
... an exemption may be granted only if the Secretary of Health, Education & Welfare makes the following findings with respect to the religious sect: ... That it is the practice and has been for a period of time which the Secretary deems to be substantial, for members of such sect or division thereof to make provisions for their dependent members which, in the judgment of the Secretary, is reasonable in view of the general level of living of the members of the Sect or division thereof. (p. 228)